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To promote stable, constructive labor-management relations through the resolution and prevention of labor disputes in a manner that gives full effect to the collective-bargaining rights of employees, unions, and agencies.

This matter is before the Authority on exceptions to an award of
Arbitrator Bernard H. Cantor filed by the Union under section 7122(a) of the
Federal Service Labor-Management Relations Statute (the Statute) and part 2425
of the Authority's Rules and Regulations. The Agency filed an opposition to the
Union's exceptions.(1)

The Arbitrator sustained a grievance alleging that the Agency violated
the parties' collective bargaining agreement by implementing a new procedure
for inspecting petroleum products before completing bargaining with the Union.
Although the Arbitrator ordered the Agency to take a number of actions,
including returning to the statusquoante, the Arbitrator
declined to award backpay to affected employees.

For the following reasons, we conclude that the Union has not
established that the Arbitrator's award is deficient under section 7122(a) of
the Statute. Accordingly, we will deny the Union's exceptions.

II. Background and Arbitrator's Award

Customs Inspectors are responsible for, among other things, clearing
petroleum shipments imported into the United States. Many of the duties related
to this function were performed by inspectors on overtime. In 1990, the Agency
implemented a new test procedure for petroleum inspection. The Union filed a
grievance over the implementation and, when the grievance was not resolved, it
was submitted to arbitration. As relevant here, the Arbitrator concluded that
the Agency violated the parties' collective bargaining agreement by
implementing the new procedure before bargaining over its impact and
implementation with the Union.

The Arbitrator ordered the Agency, among other things, to return to the
statusquoante. The Arbitrator declined to award backpay,
however. The Arbitrator found that although the Customs Inspectors' duties
often were performed on overtime, "overtime was not determined solely by this
product." Id. at 8. The Arbitrator found that the record "fail[ed] to
show a direct connection between the [new procedure] and the actual loss of
gross pay of any particular employees." Id. at 31.

III. Positions of the Parties

A. The Union

The Union contends that the Arbitrator's failure to award backpay is
inconsistent with the Back Pay Act and is based on a nonfact. The Union also
contends that the Arbitrator exceeded his authority.

First, the Union contends that backpay is required in cases involving a
refusal to bargain over the impact and implementation of a change in conditions
of employment when adversely affected employees establish a causal nexus
between the violation and a loss in pay. According to the Union, a causal nexus
is established when it is found that an agency's actions resulted in a
withdrawal or reduction in employees' pay. The Union argues that the Arbitrator
improperly required the Union to demonstrate specific losses to particular
employees, in violation of the Back Pay Act.

Second, the Union claims that the Arbitrator exceeded his authority.
According to the Union, "the parties stipulated that the issue of
individualized harm, or amount of back pay due to employees, would be reached
upon separate pleadings after a decision on the merits of the grievance."
Exceptions at 11. (Citation omitted). The Union argues that the Arbitrator
"ignore[d]" the stipulation. Id.

Finally, the Union contends that the Arbitrator's failure to award
backpay is based on a nonfact. According to the Union, "[t]he central fact
underlying his decision to deny back pay was his finding of no evidence of a
loss in pay to particular employees resulting from" the Agency's
violation of the parties' agreement. Id. at 13 (emphasis in original)
(citation omitted). The Union argues that the record established "that
employees, including a specifically identified employee, suffered a loss in
overtime pay as a result of the Agency's improper unilateral implementation . .
. ." Id.

The Union requests that the award be modified to order backpay to
affected employees. The Union also requests that the award be remanded to the
Arbitrator to determine the amounts of such backpay as well as attorney fees.

B. The Agency

The Agency asserts that the Union has failed to establish that the
award is deficient. The Agency contends that, as the Union did not establish
before the Arbitrator that the change in procedure caused a pay loss to the
affected employees, the award is not contrary to the Back Pay Act and is not
based on a nonfact. The Agency also contends that the Arbitrator did not exceed
his authority. The Agency asserts that the parties stipulated only that the
amount of backpay would be determined later and that, therefore, the "issue of
whether [the Union] was entitled to an award of back pay was fully within the
scope of the Arbitrator's authority." Opposition at 11.

IV. Analysis and Conclusions

A. The Award Is Not Contrary to the Back Pay Act

For an award of backpay to be authorized under the Back Pay Act, an
arbitrator must determine that an aggrieved employee was affected by an
unjustified or unwarranted personnel action, that the personnel action directly
resulted in the withdrawal or reduction of the grievant's pay, allowances or
differentials, and that but for such action, the grievant otherwise would not
have suffered the withdrawal or reduction. SeeFederal Employees
Metal Trades Council and U.S. Department of the Navy, Portsmouth Naval
Shipyard, Portsmouth, New Hampshire, 39 FLRA 3, 7 (1991). An agency's
violation of a collective bargaining agreement constitutes an unjustified and
unwarranted personnel action under the Act. SeeU.S. Department of
Defense, Army and Air Force Exchange Service, Dallas, Texas and National
Federation of Federal Employees, Local 977, 40 FLRA 1099, 1105 (1991).

In this case, the Arbitrator found that the Agency violated the
parties' collective bargaining agreement by implementing a change in procedure
before bargaining with the Union. Therefore, the first requirement of the Back
Pay Act was met. The Arbitrator concluded that the second requirement was not
met, however. The Arbitrator found, in this regard, that the record "fail[ed]
to show a direct connection between the [new procedure] and the actual loss of
gross pay of any particular employees." Award at 31. Consequently, the
Arbitrator denied backpay.

We conclude that the award does not violate the Back Pay Act. The
Arbitrator expressly concluded that there was no evidence that the Agency's
violation of the parties' agreement resulted in a loss of affected employees'
pay, allowances, or differentials. Backpay is "available only where it is clear
that the violation has resulted in a loss of some pay, . . . that is, when the
second requirement of the Back Pay Act has been met." U.S. Department of
Health and Human Services, Social Security Administration, Baltimore, Maryland
and U.S. Department of Health and Human Services, Social Security
Administration, Hartford District Office, Hartford, Connecticut, 37 FLRA
278, 292 (1990). As the second requirement of the Back Pay Act was not met in
this case, the Arbitrator's denial of backpay is not deficient.

Similarly, we reject the Union's argument that the Arbitrator
improperly required the Union to "demonstrate each particular employee's
specifically identifiable monetary loss in order to be awarded back pay."
Exceptions at 10. The Arbitrator found no evidence of "actual loss of gross pay
of any particular employees." Award at 31 (emphasis added). In our view,
the Arbitrator properly applied the second requirement of the Back Pay Act and,
on the basis of the record before him, concluded that there was no evidence
that the Agency's improper action resulted in a loss of pay, allowances, or
differentials. That is, the Arbitrator required only what the Back Pay Act
itself requires: evidence of a causal relationship between the violation and
the loss or reduction in pay, allowances or differentials.

The Union has not demonstrated that the award is contrary to the Back
Pay Act. In our view, this exception constitutes mere disagreement with the
Arbitrator's assessment of the evidence and testimony presented at the hearing
and with the Arbitrator's conclusions based thereon. Such disagreement provides
no basis for finding an award deficient. SeeU.S. Department of the
Air Force, Ogden Air Logistics Center, Hill Air Force Base and American
Federation of Government Employees, Local 1592, 40 FLRA 1243, 1248 (1991).

B. The Arbitrator Did Not Exceed His Authority

An arbitrator exceeds his or her authority when, among other things,
the arbitrator resolves an issue not submitted to arbitration. SeeU.S. Department of the Treasury, Internal Revenue Service, Brookhaven
Service Center and National Treasury Employees Union, Chapter 99, 37 FLRA
1176, 1188 (1990).

Contrary to the Union's claim, the record does not demonstrate that the
Arbitrator's failure to award backpay is inconsistent with a stipulation
between the parties at the arbitration hearing. The transcript of the hearing
reveals the following agreement:

[Agency representative]:

I will agree that if there is a finding against the Agency and if
there is a finding of back pay, which are all speculative, then that issue can
be litigated at a later date.

[The Arbitrator]:

Does that save you from going through 2,000 pages?

[Union representative]:

Yes, it does.

[The Arbitrator]:

Let the record show that they've stipulated that when, as and if and
maybe we get to that issue, papers will be sorted out and summarized
hereafter.

Attachment F to Exceptions, at 236-37.

The transcript shows only the parties' agreement that, if backpay were
awarded to employees, the amounts of such pay would be determined separately.
The Arbitrator concluded that no backpay was warranted. As such, the parties'
stipulation that amounts of backpay would be determined separately became moot.
Nothing in the hearing transcript, or the Union's exceptions, shows that the
Arbitrator was prohibited in any way from addressing the issue of overall
entitlement to backpay. Accordingly, there is no basis on which to conclude
that the Arbitrator exceeded his authority by determining that backpay was not
warranted. SeeU.S. Department of the Treasury, Internal Revenue
Service, Philadelphia Service Center, Philadelphia, Pennsylvania, 41 FLRA
710, 723-724 (1991).

C. The Award Is Not Based on a Nonfact

To establish that an award is based on a nonfact, the party making the
allegation must demonstrate that the central fact underlying the award is
clearly erroneous but for which a different result would have been reached by
the arbitrator. For example, U.S. Department of the Navy,
Philadelphia Naval Shipyard and Philadelphia Metal Trades Council, 41 FLRA
535, 539 (1991).

The Union has not demonstrated that the Arbitrator's failure to award
backpay is based on a central fact that is clearly erroneous. The Arbitrator
based his award on the record before him and found that no employees suffered
any loss in pay because of the Agency's violation of the parties' collective
bargaining agreement. The Union's claim to the contrary constitutes mere
disagreement with the Arbitrator's evaluation of the evidence and his findings
based thereon. Such disagreement provides no basis for finding an award
deficient. SeeU.S. Department of the Army, Army Aviation Center,
Fort Rucker, Alabama and American Federation of Government Employees, Local
1815, 40 FLRA 94, 98 (1991); U.S. Department of Defense, Dependent
Schools, Mediterranean Region and Overseas Federation of Teachers, 36 FLRA
861, 867-868 (1990).

1. The Union filed a response to the Agency's opposition
and the Agency filed a response to the Union's response. The Authority's
regulations do not provide for the filing of supplemental submissions and
neither party has demonstrated a reason for the Authority to consider its
supplemental submission in this case. Therefore, neither supplemental
submission has been considered.

2. In view of our finding that the Arbitrator's denial of
backpay is not deficient, attorney fees under the Back Pay Act are not
authorized. See, for example, American Federation of
Government Employees, Local 216, National Council of EEOC Locals and Equal
Employment Opportunity Commission, 42 FLRA 319, 320 (1991). Consequently,
we reject the Union's request that the issue of attorney fees be remanded to
the Arbitrator for briefing and decision.